Date: 19 Aug 2011
Naturalism in Epistemology and the Philosophy of Law
- Mark Greenberg
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In this paper, I challenge an influential understanding of naturalization according to which work on traditional problems in the philosophy of law should be replaced with sociological or psychological explanations of how judges decide cases. W.V. Quine famously proposed the ‘naturalization of epistemology’. In a prominent series of papers and a book, Brian Leiter has raised the intriguing idea that Quine’s naturalization of epistemology is a useful model for philosophy of law. I examine Quine’s naturalization of epistemology and Leiter’s suggested parallel and argue that the parallel does not hold up. Even granting Leiter’s substantive assumption that the law is indeterminate, there is no philosophical confusion or overreaching in the legal case that is parallel to the philosophical overreaching of Cartesian foundationalism in epistemology. Moreover, if we take seriously Leiter’s analogy, the upshot is almost the opposite of what Leiter suggests. The closest parallel in the legal case to Quine’s position would be the rejection of the philosophical positions that lead to the indeterminacy thesis.
This essay was written for a conference entitled ‘Naturalism and Other Realisms in Philosophy of Law’, held in 2001 at Columbia University. It has never been published, but the conference paper has circulated since 2001 and has been available on the Internet for several years. (The paper has circulated under different titles; the conference paper was entitled: ‘Unnatural Proposal: Indeterminacy as a Motivation for the Naturalization of Legal Philosophy’.) The paper has been fortunate enough to attract commentary, published and unpublished, from several writers, including Brian Leiter himself (in his 2007 book). For this reason among others, I have decided to publish the conference paper in a form pretty close to the original and to write a new paper, ‘Implications of Indeterminacy: Naturalism in Epistemology and the Philosophy of Law II’ (2011, this volume; hereafter, Naturalism II), in which I give my present take on the issues. (In addition, given the length of time that has elapsed since I wrote the original paper, if I were to begin revising it now, I would probably end up rewriting it completely.) From my present vantage point, the substantive issue of the implications for philosophy of law of the American Legal Realists’ indeterminacy thesis strikes me as more important than Leiter’s analogy between the Legal Realists and Quine. In the new paper, I therefore focus on that issue in addition to responding to Leiter’s discussion of my original paper.
Greenberg, M., ‘Implications of Indeterminacy: Naturalism in Epistemology and the Philosophy of Law II’, (Naturalism II), Law and Philosophy, (2011). doi:10.1007/s10982-011-9110-5
Leiter, B: 1995: “Legal Indeterminacy,” Legal Theory, 1, pp. 481-492.CrossRef
Leiter B 1997: “Rethinking Legal Realism: Toward a Naturalized Jurisprudence,” Texas Law Review, 76, pp. 267-315.
Leiter 1998: “Naturalism and Naturalized Jurisprudence,” in Brian Bix, ed., Analyzing Law: New Essays in Legal Theory. Oxford: Clarendon Press.
Leiter B 2001: “Legal Realism and Legal Positivism Reconsidered,” Ethics, 111, pp. 278-301.CrossRef
Leiter B 2007: Naturalizing Jurisprudence: Essays on American Legal Realism and Naturalism in Legal Philosophy. Oxford: Oxford University Press.
Quine, W. V. O., ‘Two Dogmas of Empiricism’, in From a Logical Point of View (Cambridge, MA: Harvard University Press, 1953).
Quine, W.V.O. 1960: Word and Object. Cambridge, MA: MIT Press.
Quine, W. V. O., ‘Epistemology Naturalized’, in Ontological Relativity and Other Essays (New York: Columbia University Press, 1969).
Quine W.V.O. 1990: The Pursuit of Truth. Cambridge, MA: Harvard University Press.
Quine, W. V. O., ‘Words Are All We Have to Go On’, Times Literary Supplement, July 3, 1992, p. 8.
Quine, W. V. O. and Ullian, J. (1970) The Web of Belief, Second Edition. New York: Random House.
- Naturalism in Epistemology and the Philosophy of Law
Law and Philosophy
Volume 30, Issue 4 , pp 419-451
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- Mark Greenberg (1)
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- 1. Department of Philosophy and School of Law, UCLA, Box 951476, Los Angeles, CA, 90095-1476, USA